The charge of posting an intimate visual recording carried a maximum two-year prison term or a $50,000 fine.
It was a “salutary lesson” in how easy it was to end up facing criminal charges by sending digital material that could harm someone, police told NZME outside the Nelson District Court this week.
“This really was a perfect storm of factors that led to the offending,” defence lawyer Amanda Godwin said inside the court at the woman’s hearing.
Judge Stephen Harrop said the “real culprit” was the person who shared it initially. Photo / Lewis Mulatero
The defendant was charged after the victim complained to the police.
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Judge Stephen Harrop said it was a serious charge, and the court recognised the serious harm caused to people by the posting of such material, but the defendant had since suffered “serious abuse” online, making her a victim of harmful social media too.
She had suffered other consequences, including the loss of a contract linked to her business.
The court heard that in January this year, the defendant met on TikTok an Australian man, who had received the intimate image from the complainant via Snapchat.
He shared the image to a Messenger group of about 13 people, to which the defendant belonged.
Another member of the group “doctored” the image to make it animated and shared it with the defendant, who sent it to the TikTok acquaintance to “double check” that he had seen it.
The person who doctored the image and shared it has been charged and will be sentenced in a South Island court next month.
Judge Harrop said the “real culprit” was the man who shared it initially, but he acknowledged that the victim was concerned about it having been reposted.
He said the circumstances were “very different” to someone surreptitiously taking an image and posting it, and that the woman who had taken the image and sent it was part of the equation.
“We have a situation where the victim put it out in the first place, which was intended for one person but was then published to a group of 13,” Judge Harrop said.
“It does mean the seriousness of the offending is less than what appeared.”
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He said the defendant had afterwards suffered a “sustained campaign of harassment and abuse” online and that she too had become a victim.
She had since been diagnosed with a mental health condition that was likely to make her act impulsively, which was recognised by a psychologist in the pre-sentence report writing process.
The consequences of a conviction were therefore likely to be greater than they might be for someone more resilient, Judge Harrop said in granting a discharge without conviction.
The defendant was ordered to make a $200 emotional harm payment to the victim.
The judge also granted permanent name suppression.
He said the public “may well conclude” that the woman should have been convicted and that it was unfair to discharge her and then allow her name to be published, even though that did not automatically follow.
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“I’m satisfied for the reasons you were granted interim name suppression, and a discharge without conviction, the test for final suppression has been met,” Judge Harrop said.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government, for the Nelson Mail.